Court of Appeal: Upper Tribunal must not speculate on facts

Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021) 

Mr Lowe, a Jamaican national, appealed a decision of the UT to reverse the FTT’s decision to allow his appeal against the refusal of his human rights claim by the SSHD. McCombe and Asplin LJJ (Phillips LJ dissenting) held that by reversing the FTT’s decision that Mr Lowe’s deportation to Jamaica fell within Exception 1 set out in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002 and para 399A of the Immigration Rules, the UT (UTJ Perkins) had impermissibly made its own assessment of the facts. It was the case that the FTT  had been entitled to assess the individual that he saw in the witness box and to decide, in light of all the information before him, that Mr Lowe would face very significant obstacles to integration in Jamaica. Mr Lowe was born in Jamaica, but he and his parents (who had separated and had other children) had lived in the UK, with indefinite leave to remain, since he was three. In 2017, a few weeks prior to turning eighteen, he pleaded guilty to possession of crack cocaine, with intent to supply, and to possession of a knife in a public place. After receiving credit for his guilty pleas and his previous good character, Mr Lowe was sentenced to a term of imprisonment of 28 months for the drugs offence and the Crown Court judge accounted for mitigation only commenting that “the cards have not fallen well for you”.

The FTTJ determined that there were very substantial obstacles to Mr Lowe’s integration into Jamaica because he did not have family or other connections there. Notably, he had never lived an independent life away from his parents or state institutions and had a lack of financial support in Jamaica. This led the FTTJ to conclude that deportation would be a disproportionate interference when weighed against his family and private life in the UK and thus Exception 1 was met. UTJ Perkins disagreed and decided that the FTT’s decision was irrational. UTJ Perkins indicated that the “very significant obstacles” exception was only met in strong circumstances, which had not been identified in the evidence. The UT said that Mr Lowe had not produced any evidence to demonstrate that he had made any real attempt to find out about accommodation or employment in Jamaica. UTJ Perkins judged that he was not able to “accept that he can be regarded a helpless babe” because he had “sufficient wit … to be part of a drug ring enterprise.” UTJ Perkins also said “in the absence of clear evidence, that a person who has been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.” Mr Lowe had “qualifications of sorts” and also spoke “the main local language” and while it was understandable that he did not want to return to Jamaica there was nothing amounting to a “very significant obstacle”. 

The Court of Appeal 

Tbe court first examined the FTT decision, and then examined the approach of the UT. McCombe and Asplin LJJ (Phillips LJ dissenting) allowed the appeal. 

The court observed that UTJ Perkins was making his own decision and it was clear that the the decision-maker had not suggested in the decision letter, or before the FTT, that Mr Lowe should have been making his own enquiries or adducing evidence in the FTT about accommodation and/or employment in Jamaica so as to satisfy the statutory burden upon him. McCombe LJ held that:

23. … In my judgment, it was not for the UT to assess the Appellant’s “wit” in the light of his “part in a drug ring enterprise” or to speculate whether he could be regarded as a “helpless babe” that “had not learned some street wisdom of a kind that would assist him” from his period in custody. What mattered was whether the FTT judge was entitled to find, on the evidence thathe had seen and heard, and which the UT had not, and on the case made against him, that this young man with his characteristics and background, would face very significant obstacles to integration in Jamaica.

The FTTJ had dealt with the appeal against the decision-maker’s decision on the basis of the evidence produced by Mr Lowe, upon the case raised against him upon that evidence by the SSHD and having seen Mr Lowe and his mother giving their evidence. He rejected the SSHD’s case, and, in the Court of Appeal’s majority view, he was entitled to do so. It was impossible to say that on the respective cases advanced by the parties the decision on those points was “irrational”, in any ordinary sense of that word. 

The FTTJ had been entitled to assess the appellant that he saw in the witness box and to decide, bearing in mind all the information before him in the written and oral evidence, whether he would face very significant obstacles to integration in Jamaica. In the court’s view “he did that clearly and cogently, even if relatively briefly”. 

It had been quite open to the FTTJ to find that there were very significant obstacles based on the impression made upon him as to the effect of the deportation of Mr Lowe with all his characteristics, attributes, qualities and defects as disclosed by the evidence. He was a 19-year-old who had lived in the UK for all but the first three years of his life and had no connection with Jamaica other than a residual nationality and Mr Lowe was not an adult foreign criminal with a significant foundation of knowledge of the country of his birth –others might have made a different decision, but it was not surprising that the FTTJ would find that there were significant obstacles to integration. 

The court next examined the approach that had been taken by the UT. In view of Kamara v SSHD [2016] 4 WLR 152, decisions of the present character made by the fact finding tribunal are “broad evaluative decisions”. Furthermore, in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Lewison LJ explained the caution to be exercised by appellate courts in interfering with evaluative decisions of first instance. Overall, his Lordship distilled the following points from the jurisprudence of the House of Lords and Supreme Court, (i) the expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed, (ii) the trial is not a dress rehearsal, it is the first and last night of the show, (iii) duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case, (iv) in making decisions the trial judge will have regard to the whole of the sea of evidence presented whereas an appellate court will only be island hopping, (v) the atmosphere of the courtroom cannot, in any event, be recreated by reference to documents, including transcripts of evidence, and (vi) thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. In view of these points, McCombe LJ held that:

30. In this case, the FTT had determined the issues that were before it, being those which were regarded as being central to the question of whether the Appellant had demonstrated the relevant “very significant obstacles”. It was not necessary for the FTT to deal with a case that was not being made by the Respondent. The appeal to the FTT was “the first and last night of the show”, not a “dress rehearsal”.

31. Equally, it is to be recalled that judgments at first instance are necessarily an incomplete impression made upon the judge by the primary evidence. 

The FTTJ had reached the conclusion that he did on the issues raised and he expressed himself succinctly on them. 

Lord Hoffmann addressed the point in Biogen Inc. v Medeva plc [1997] RPC 1 and stated that “the need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.” McCombe LJ held that:

32. It was, in my view, quite open to the FTT judge to find that there were the necessary very significant obstacles based on the impression made upon him as to the effect of the “exile” of this young man, with all his characteristics, attributes, qualities and defects that were disclosed by the evidence. Not every healthy young man, in a case such as this, would make the same impression. However, this was a 19 year old with a conviction, when he appeared before the FTT. He had lived for all but the first three years of his life in the UK and had no connection to Jamaica whatsoever other than a residual nationality. The judge found that he had a specific dependency on his parents. The judge was entitled to form his own impression of the obstacles he would face on being dumped in Jamaica at the end of the prison term. He was not an adult foreign criminal, like some whose cases come before the courts, with a significant foundation of knowledge of the country of his birth from an earlier time in life, and who is being returned to a country with which he has some acquaintance. It is not surprising to me that a judge (if not all judges) would find, as this judge did, that there were very significant obstacles to integration. Others might have made a different decision, but this was very much a case on its own facts to be assessed on the evidence.

Asplin LJ agreed that the decision of the FTTJ was not irrational. He heard the witnesses and having considered the oral and written evidence before him, was entitled to decide that Mr Lowe would face very significant obstacles to integration in Jamaica, after having considered the totality of that evidence. UTJ Perkins impermissibly allowed himself to speculate about Mr Lowe and to bolster that speculation by reliance upon a perceived lack of evidence to the contrary. He went outside his function in remaking the decision on the facts. It was not for the UT to come to conclusions about Mr Lowe’s “wit” based upon his involvement in a drug ring. Nor was it open to him on an appeal of this nature to conclude that he was “unable to accept in the absence of clear evidence, that a person who has been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.” UTJ Perkins hence strayed from his task and in doing so failed to take account of the fact that the FTTJ had had the benefit of hearing both Mr Lowe and his mother give evidence and had reached a broad evaluation decision. Instead of determining whether the FTTJ’s decision was irrational, the UT embarked upon making the decision itself, took account of matters which had not featured before the FTT and allowed himself to speculate about Mr Lowe. 

Phillips LJ entered a note of dissent and said that UTJ Perkins had asked himself whether the matters identified by the FTT were capable of amounting to very significant obstacles to integration so that the FTTJ’s conclusion was one which he was entitled to reach. That was a proper question of law and the UT was justified in finding that the factors identified were not capable of amounting to very significant obstacles. 

Comment 

Mr Lowe’s case is a reminder for judges such as UTJ Perkins not to interfere with the fact finding of the FTT just for the sake of doing so. It is too often the case that UT judges find it necessary to meddle with fair first instance judgments of the FTT by embarking upon a personal campaign to aid the SSHD like UTJ Perkins did in this matter. As the court said, he had impermissibly made its own assessment of the facts and should not have disturbed the FTT’s broad evaluation decision (which was perfectly sound) and he should not have speculated whether Mr Lowe could be regarded as a “helpless babe”. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Automatic Deportation, Court of Appeal, ECHR, Immigration Act 2014, Immigration Rules, Jamaica, Public Interest, Tribunals and tagged , , , , , . Bookmark the permalink.

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